United States District Court, N.D. Illinois, Eastern Division
AMIRA A. SILIC, Plaintiff,
BBS TRUCKING, INC., Defendant.
MEMORANDUM OPINION AND ORDER
THOMAS M. DURKIN, District Judge.
Plaintiff Amira Silic ("Silic") filed a complaint against Defendant BBS Trucking, Inc. ("BBS"), alleging claims of discrimination under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act ("ADEA"). R. 9. On July 1, 2013, BBS moved for summary judgment, R. 27, arguing that Silic failed to demonstrate that BBS employed fifteen or more employees as required under Title VII, and twenty or more employees required under the ADEA. For the reasons explained below, BBS's motion for summary judgment is granted.
On November 16, 2011, Silic filed administrative charges of discrimination with the Equal Employment Opportunity Commission (EEOC). The EEOC issued a right-to-sue letter on May 18, 2012. R. 24 at 3. On October 16, 2012, Silic filed a two-count complaint, alleging claims of discrimination under Title VII of the Civil Rights Act of 1964 (Count I) and ADEA (Count II) against BBS. R. 9 ¶¶ 1, 14. On March 11, 2013, the Court issued an order denying BBS's motion to dismiss Counts I and II and ordered limited discovery on the question of whether BBS is an employer under Title VII and the ADEA. R. 24 at 9. BBS filed a motion for summary judgment, which is currently pending before the Court. R. 27.
Silic, a 45-year old woman, worked as a truck dispatcher for BBS until November 2011, when she alleges she was wrongfully terminated. R. 24 at 2. Specifically, Silic alleged that she was treated "differently and less favorably" than her male counterparts in the handling of work assignments and was held to a higher standard of performance than those male employees. R. 24 at 2. When Silic complained to the owner of BBS, Milorad Bosanac, about this treatment, he threatened her with termination. R. 24 at 2. Silic also claimed that co-owner, Ivan Bojic, created a hostile work environment by constantly yelling at Silic while she was on the telephone; interfering with her work on a daily basis by stopping her from calling drivers and booking loads; starting rumors that Silic and Bosanac were having an affair; and allowing male employees to refer to her as a "bitch." Id. Silic also claimed she was treated differently when Bosanac hired younger female employees and told drivers to coordinate with them rather than with her. Id.
BBS is an Illinois corporation that is licensed by the Federal Motor Carrier Safety Administration to operate as a motor carrier of property in interstate commerce. R. 28 ¶ 1. BBS contracts with independent contractor owner-operators who lease tractors and drivers to BBS in order to operate under BBS's federal motor carrier authority. Id. ¶¶ 9, 10. In some cases, the owner-operators are corporations or sole proprietors. Id. ¶¶ 10, 12. BBS requires the owner-operators to provide prior employment verification and drug screenings before using their tractors or drivers. R. 36 ¶ 7. Each of the owner-operators that enter into lease agreements with BBS certify they are independent contractors and will not be provided benefits by BBS. R. 28 ¶¶ 18, 20. The owner-operators agree that the compensation they receive from BBS will not be subject to federal and state income tax and social security tax withholding. R. 28-4 at 6 (§IV(7)). The lease agreements for the tractors between owner-operators and BBS state that the owner-operators and drivers are not considered employees of BBS and that services will be provided without supervision. R. 28-4 at 6 (§IV(1)(7)). The owner-operators also agree pursuant to the lease agreements that they will pay the entire cost of operating and maintaining the leased equipment throughout the duration of the lease. R. 28-4 at 7 (§VI).
Further, owner-operators can refuse assignments, choose when they work and choose their own routes in transporting the shipments from origin to destination. R. 28 ¶¶ 14, 15. Drivers of the trucks maintained a BBS sign on their trucks with the lettering "USDOT" (U.S. Department of Transportation) and showing a Motor Carrier number assigned by the U.S. Department of Transportation. R. 33 ¶ 10. Each driver transporting shipments for BBS also received business cards stating the driver works for BBS. R. 36 ¶ 9. No driver was required to wear a BBS uniform while performing services under the lease agreement with BBS. R. 28 ¶ 16.
Excluding the owner-operators and drivers working for the owner-operators, BBS did not employ more than eight office employees during the time Silic worked at BBS. Id. ¶ 8. Taxes, social security, and other withholdings were retained from these eight employees and five of the eight office employees were issued W-2 statements. Id. ¶ 6. Silic filed an affidavit on August 26, 2013, stating that she gave work assignments to over fifteen drivers on a daily basis. R. 33-1 ¶ 12. In her affidavit, Silic states that based upon her knowledge, personal observations and BBS's policies and procedures, BBS had "complete control" over truck driver assignments and activities and that there were more than 15 drivers working for BBS. Id. ¶¶ 15, 16. Silic states that truck drivers working for BBS were not allowed to take trucking assignments for other employers because of BBS signs glued to the trucks. Id. ¶ 13. Additionally, Silic alleges that truck drivers working for BBS would be terminated from employment if a driver refused to move three "loads" in a day. Id. ¶ 14.
BBS moves for summary judgment on the basis that the owner-operators that contracted with BBS were merely independent contractors and did not rise to the level of "employees." R. 27. The Court agrees with BBS that the owner-operators are independent contractors, not employees, and BBS maintained no more than eight employees during the time Silic was employed in 2011. R. 32 ¶ 8. Accordingly, Silic cannot advance her Title VII and ADEA claims, and summary judgment for BBS is granted.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Court considers the entire evidentiary record and must view all of the evidence and draw all reasonable inferences from that evidence in the light most favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013). To defeat summary judgment, a nonmovant must produce more than "a mere scintilla of evidence" and come forward with "specific facts showing that there is a genuine issue for trial." Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013). Ultimately, summary judgment is warranted only if a reasonable jury could not return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A. Independent Contractor vs. Employee
The Court must determine whether the owner-operators and drivers that contract with BBS are employees for purposes of meeting the fifteen employee minimum under Title VII and the twenty employee minimum under the ADEA. If the owner-operators and their drivers that contract with BBS are independent contractors, they cannot be counted towards the fifteen employees required for Title VII jurisdiction and twenty employees for ADEA jurisdiction. Ost v. West Suburban Travelers Limousine, Inc., 88 F.3d 435, 437-38 (7th Cir. 1996). Because this case arises under federal jurisdiction, the Court relies on the definition of "employee" provided by the precedent of the Seventh Circuit. In order to determine whether an employee-employer relationship exists, "courts look to the economic realities of the relationship and the degree of control the employer exercises over the alleged employee." Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 380 (7th Cir. 1991). The following factors are considered: (1) the extent of the employers' control and supervision over the worker, including directions on scheduling and performance of work; (2) the kind of occupation and nature of skill required, including whether skills are obtained in the workplace; (3) responsibility for the costs of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance ...